Was Righthaven right to sue an Ars author?

A new article sort-of makes the case; I raise a giant eyebrow of skepticism.

Eriq Gardner, who writes most often for The Hollywood Reporter, did a single piece for us. It was on Righthaven, the infamous copyright lawsuit outfit from Las Vegas which crashed and burned so badly that its principals are being investigated by the Nevada State Bar. And it got him sued, by Righthaven, in federal court.

The lawsuit was obviously bogus. Gardner had used a black-and-white image from one of Righthaven's own court filings in a news article about the company—textbook fair use—and they came to him seeking statutory damages up of to $150,000. When I called Righthaven to ask what was going on, I was told that the company had suffered some "confusion" about the photo and that "an internal error" or a "clerical mistake" of some (unspecified) kind had led to the suit. They dismissed the case.

The title is rather misleading; even fellow copyright trolls are quoted as bashing Righthaven, and Gardner has no doubt that Righthaven should not have sued him. But he's interested in the idea of these mass lawsuits, and the piece is especially interesting for the quotes it contains. Case in point: despite court-ordered debtors' exams, US Marshals targeting Righthaven assets, the loss of the company's domain name and intellectual property, the dressing-downs from judges, and the State Bar investigation of his work, Righthaven CEO Steve Gibson can still say:

Righthaven remains the vehicle for dealing with infringements on the Internet. Those who write poems, those who create movies, those who want to publish need to have a sense of protectability. If you want to have newspapers survive, protected from aggregators on the Internet, you’ve got to think about the vehicle through which that protection can occur. I don’t think anyone besides Righthaven has thought about that.

The hogwash here is of a pungent variety. Let's remember what Righthaven was actually doing: at one point, it targeted a key source for the very story over which it was suing, who had freely given the paper what it needed and had then posted the resulting article to his organization's (small) website. Righthaven targeted people for articles that had received only a few dozen hits. It went after posters deep in obscure subforums who wanted to discuss a story with their peers. And it routinely demanded that the courts award Righthaven the domain name of each targeted organization—a ludicrous remedy that judges refused. As for "no one else has thought about this," sites like Ars have thought about it for years.

Gardner notes that papers have been hard-hit in the last decade, which is true, but he doesn't explain why. The real reasons (which are complicated but include aggregators, Craigslist, the Internet's power to make national papers available "locally," increased digital competition from blogs, and so on) have nearly nothing to do with the people sued by Righthaven (occasional cases like that against the Drudge Report did at least address the real issue more directly).

The copyright problems plaguing the news businesses differ from those that afflict music and movies. (Newspapers are more concerned about "hot news," rewrites, aggregation, and automated tools like Google than about direct copies of entire works, though of course these can sometimes pose problems, too.) But might both industries benefit from even more mass lawsuit campaigns, like the ones waged previously by the RIAA and currently by some indie movie studios and porn producers?

Anything is an improvement

Not under the current regime (and not if "benefit" means something like "long-term sustainability"). Copyright cases are federal matters, and federal court is expensive for both sides. Combine it with a statutory damages regime out of the pre-Internet age and you have a system set up for handling a few corporate infringements—not many tiny noncommercial ones. It's ripe for abuse; users feel extorted into settlements, while rightsholders feel like they have no good way to enforce their copyrights online.

Monetizing distribution rather than controlling it is certainly one route to go, but let's not underestimate the technical and political impediments to making such a system work robustly. And incredible legal options are necessary—but "really good" options like Netflix, Rdio, Spotify, and Amazon Prime Videos are already here. In the short term, some form of "patched" legal regime looks like the most practical way to stop ruining people's lives through the legal system and to give those who choose legal enforcement of their copyright a chance to do so on a broader scale.

Given the petty nature of most individual infringements, going to federal court is a bit like using an axe to slice your cheese. Gardner's article notes one possible way forward: "In particular, many are following discussions under way at the US Copyright Office about a small claims circuit for copyright claims." The new "six strikes" Copyright Alerts system, coming this summer from most major US Internet providers, provides another approach, though with problems of its own.

But really, just about anything is preferable to the system we've watched in action for the last decade. And the less we see of anything like Righthaven, the better. This was the company backed by a Las Vegas newspaper which talked about Righthaven in the most thuggish terms possible. As Las Vegas Review-Journal columnist Vin Suprymowicz wrote of content "thieves": "I hate them with a passion. Lawsuits? They should have their godd**ned hands cut off and nailed to the wall of City Hall." And publisher Sherman Frederick warned his own readers, "I'm asking you nicely once again—don't steal our content. Or, I promise you, you will meet my little friend called Righthaven."